Grayson v. Dunn
221 F. Supp. 3d 1329
M.D. Ala.2016Background
- Ronald Bert Smith, an Alabama death-row inmate, filed a §1983 challenge to Alabama’s three-drug lethal-injection protocol (primarily objecting to midazolam) on April 15, 2016; his execution was scheduled for December 8, 2016.
- ADOC used a three-drug protocol since 2002 (first drug: sodium thiopental until 2011, pentobarbital until Sept. 2014, then midazolam); paralytic as second drug and potassium chloride as third have been constant.
- Smith alleges: (1) midazolam will not adequately anesthetize him (Eighth Amendment); (2) the ADOC’s consciousness-assessment (performed by untrained officers) is inadequate (Eighth Amendment); and (3) counsel-witnesses must have phone access during execution to preserve meaningful access to courts (First, Eighth, Fourteenth Amendments).
- Defendants moved to dismiss under Rule 12(b)(6), arguing all claims are time-barred, fail to state a claim, and are barred by laches.
- The court consolidated Smith’s case into the Midazolam Litigation for discovery and trial but dismissed Smith’s complaint on the face of the pleadings as time-barred and entered final judgment for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Eighth Amendment method-of-execution claim (attack on three-drug protocol) | Smith contends midazolam renders the protocol unconstitutional and proposes alternatives (one-drug pentobarbital, sodium thiopental, or high-dose midazolam). | Defendants say the real attack is on the longstanding three-drug protocol (paralytic + KCl), which accrued when lethal injection adopted in 2002 and is time-barred. | Claim accrued in 2002; statute of limitations expired; Eighth Amendment method-of-execution claim dismissed as untimely. |
| Timeliness of consciousness-assessment claim | Smith says the assessment (performed by non-medical staff) is constitutionally inadequate; Brooks’s 2016 execution revealed facts supporting the claim. | Defendants note the consciousness assessment was adopted in 2007; any challenge accrued then and is time-barred; Brooks’ events do not show a protocol change. | Court treats the 2007 adoption as start of limitations; claim untimely and dismissed. |
| Timeliness of access-to-courts / counsel phone-access claim | Smith argues counsel witnessing execution must have phone access to contact courts if intervention is needed; Brooks’s counsel denial in 2016 evidences injury. | Defendants point out ADOC’s no-phone visitor policy has long existed; no recent change; claim could have been brought earlier, so it is time-barred. | Court holds the claim accrued earlier; Brooks’s execution did not create a new cause; claim dismissed as time-barred. |
| Failure to state a claim & laches (alternative defenses) | Smith also advances merits arguments against protocol and practices. | Defendants argue independent Rule 12(b)(6) and laches defenses justify dismissal. | Court did not reach merits or laches because all claims were dismissed as time-barred on the face of the complaint. |
Key Cases Cited
- Glossip v. Gross, 135 S. Ct. 2726 (2015) (plaintiffs must identify known, available, less painful alternatives under Eighth Amendment)
- Baze v. Rees, 553 U.S. 35 (2008) (standard for method-of-execution Eighth Amendment challenges)
- McNair v. Allen, 515 F.3d 1168 (11th Cir. 2008) (accrual rules for method-of-execution claims; limitations run from adoption or substantial change in protocol)
- Arthur v. Thomas, 674 F.3d 1257 (11th Cir. 2012) (description and treatment of Alabama’s consciousness-assessment)
- AVCO Corp. v. Precision Air Parts, Inc., 676 F.2d 494 (5th Cir. 1982) (statute-of-limitations defense may be raised on Rule 12(b)(6) motion)